“Except As Otherwise Specified in this Agreement”

As reported on ContractsProf Blog, the phrase except as otherwise specified in this agreement featured in newscaster Dan Rather's contract with CBS. It also featured in a New York appellate court's opinion in CBS's appeal of the trial court's refusal to dismiss Rather's breach of contract claim against CBS. At issue was the interplay of two contract provisions. Here's the pertinent part of the … [Read more...]

The Passive Voice Has Its Uses

MSCD 2.18 notes that the passive voice can be of use in contracts. Consider the following example: If any Person brings a proceeding to compel the Recipient to disclose any Confidential Information ... In this context, the active voice is wordy. It's obvious that a proceeding would have to be brought by someone. Because it doesn't matter who brings a proceeding, we don't care about the … [Read more...]

“And” and “Or” and Covering a Disparate Group

One of my afflictions is paranoia regarding and and or. (You may recall my deconstruction of a Toronto restroom notice.) Consider the following: If a proceeding seeks to compel the Recipient or any of its Representatives to disclose any Confidential Information ... I'm wondering whether one could improve on that formulation—given that or can be inclusive or exclusive, it's not clear whether … [Read more...]

On Declining to Post Comments

To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. I had avoided posting perhaps a couple of dozen other comments, but in those cases I attempted to smooth things over by treating the comment as an email and sending the commenter a friendly reply. By contrast, over the past couple of weeks I've declined to … [Read more...]

“Representations and Warranties”—Glenn West Wades In

Following on this September 18 post and this September 20 post, the saga continues: Glenn West, partner at Weil Gotshal and author of the two most useful articles on substantive contract law that I've come across in a long time, agrees with me on represents and warrants and representations and warranties. Below is the email Glenn sent me in connection with the September 18 post; below that is my … [Read more...]